Will the Supremes show tonight? Update: 6 of 9 to attend

posted at 9:30 am on January 25, 2011 by Ed Morrissey

Last year, President Obama publicly upbraided the Supreme Court during his State of the Union speech for its Citizens United decision, claiming — incorrectly — that it reversed “a century of law.” In fact, it reversed the McCain-Feingold law that barred corporations from spending money on political advertising within a certain period of time before an election, not the “century of law” that barred corporations from donating to political candidates, which is still very much in place. Justice Samuel Alito knew the difference, which is why he shook his head and mouthed the words “not true,” which so offended Obama that the White House continued its ignorant attack on the Supreme Court for another few days rather than picking up the decision and reading it.

Now CBS wonders whether the Supremes will bother to show tonight — and at least some of them will find other ways to keep themselves amused rather than participate in what Justice Antonin Scalia calls “a juvenile spectacle”:

And ever since, we’ve all wondered whether any of them would return to another State of the Union. Ever again.

So we can take Alito off the guest list. But don’t go all “Justice Alito is still mad as hell over what happened last year, and he’s not going to take it anymore, so he invented an excuse to go up to Baltimore for the night.” No. Negative. Alito had a long-standing teaching engagement in Hawaii.

That leaves eight others. I’d say we can also scratch off Justices Antonin Scalia and Clarence Thomas from the “YES” list. Scalia told me in an interview at the Federalist Society dinner last fall not to expect him. “It is a juvenile spectacle, and I resent being called upon to give it dignity,” he said. “It’s really not appropriate for the justices to be there.” So that sounds to me like a big N-O. And Thomas doesn’t go for similar reasons.

Now we’re down to six. Moderate conservative Justice Anthony Kennedy seems to like all that pomp and circumstance, but he didn’t appreciate the president’s shot last year (he wrote the campaign finance decision). So will he stay away? And then what about the four liberals: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan? Maybe they’d like to attend, since it will be Kagan’s first chance as a new justice, and she can wear that black robe and look inscrutable.

In the best of all possible worlds, the Supreme Court would decide as a group whether to attend or not and then unanimously follow through on that decision. Obviously, we don’t see a lot of unanimous decisions on the law from the court, but this question deserves some thought not just for this presidency but as a tradition. Roberts is right that the State of the Union has long since become a political pep rally, something that started long before Obama, and as the one ostensibly non-political and non-partisan branch of government, the captive presence of the Supreme Court among the partisan cheers is quite unseemly.

If Roberts can’t get unanimity, though, the members of the court who are in town at the appointed time of the SOTU should make an appearance. Having just the liberal judges show for Obama and then presumably just the conservative justices show for a Republican President would be even more unseemly. Having been the target of the White House political team after last year’s SOTU, Alito can certainly be excused. And perhaps the members of the court can at least agree that an explicit attack on one of their decisions by a President in a State of the Union speech in the future will result in the entire court walking out on the rest of the speech, in what would be the only rebuke that the court’s members can deliver in that setting.

Update: Fox News reported earlier that six of nine will attend tonight, with Alito and Scalia definitely out. Although no announcement has been made, the third no-show is believed to be Clarence Thomas, who had earlier stated that he would not attend due to the “partisan atmosphere” of these events.

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Only the justices who are guided principally by politics, and not law, should go to these pep rallies.

RBMN on January 25, 2011 at 9:51 AM

Close, so close….

Anyone guided principally by partisanship, and not law or governance, should go. They should hold it in a gym somewhere and hand out t-shirts. And every elected official who attends should be primaried — of whatever party.

We get two views of government — one, of the rah-rah “our side is #1!” and “stick it in your face, losers!” variety; the other, a long hard slog of trying to do what works in the face of millions of citizen desires and thousands of government slackers and bureaucratic empire-builders. Neither one is very pretty to begin with, even if done well; if done poorly, as with the current administration, they prompt visceral revulsion.

Whoever thought up the idea of cats and dogs sitting together in the SOTU address for the DEMs is a genius. What better way to avoid the optics of how badly Obama was routed in the last election than by not having only one side giving him standing ovations, and letting the nation know just how small that side is getting, than to mix everyone together so that standing ovations look larger than they are. Fortunately only 60 or so fell for it. If SCOTUS did not show, that would be sweet, but don’t say anything until the last minute so the seats remain empty.

Having been the target of the White House political team after last year’s SOTU, Alito can certainly be excused.

But Kennedy wrote the Decision being criticized, can he also be excused for that reason? How about the other Justices who voted in the majority and then had the President lie about what they did and how it worked?

If we’re letting Alito off because the President attacked him… let’s be honest; the President attacked the majority of the SCOTUS by lying about the ruling. Shouldn’t we let those who voted in the majority skip for the same reason?

Now at this point you’ve just left the Liberal Justices as the ones who would attend; but they’re the only ones who didn’t have the President lie about their ruling. If they’re ok with having their fellow SCOTUS members attacked by a President of their political leaning for Partisan reasons then they should absolutely attend and show their partisan support.

The little dictator speaks, and by golly they better show up. pffffffffft.

I say they stand together, and boycott this time around. Give Obama a piece of their mind, thru protest. Obama needs to learn his place as well. He’s a president, that is vulnerable, and easily voted out by the people. The SOTU is not the time, nor the place to scold the Supremes, because of his personal opinions on a case.

So it’s a pretty good possibility that liberal justices will show up, but no conservative justices will? Add to that, the optics of Republicans mingled indistinguishable with Democrats. Is that creeping anybody else out? I can’t quite put my finger on why, but doesn’t that sound like a pretty chilling moment in American history?

Exactly right. Only Rush has come close to even understannding that and he still hasn’t hit the nail on the head. The minute I heard about it I got it. It’s for visual purposes. Instead of 1/3 of the chamber (mostly very strange and unattractive cretins) jumping up and cheering wildly evertime barrack the destroyer hits a propaganda point the visual will be watered down and you can bet the networks are directing the house cameras to film from the most optimum angles.

Without the applause from congress (or lack thereof) the the president may has well simply speak to a camera from behind the Oval Office desk. The congressional reactions serve as a reminder to viewers which party approves or disapproves of the president’s talking points.

JetBoy on January 25, 2011 at 10:07 AM

I know I’m late reading this thread, but you triggered an idea…

Assuming a conservative gets elected President in 2012, they should do exactly what you described… deliver bullet-point talking points from the Oval office and tell people to contact their Reps. on the points they agree with! This would kill the ritualistic pomp and bury the partisanship.

For example, I have a brother-in-law that is a staunch Democrat. If I talk parties, he’s immediately against everything I say. But if I talk CONCEPTS, he is for decreased Government spending. Party affiliation is a trained defense reaction… which is easily herded when you have a visible cue from Congress as to whether a party should like or dislike a talking point.

Take that away, and act like Reagan… take it to the people! In fact, have a web app that allows secure voting and let the people speak to Congress about their preferred talking points!

If you get parties out of the way, I think you’ll find Americans know what is right and what is wrong for the country.

Obviously, we don’t see a lot of unanimous decisions on the law from the court

Not at all true; I would venture a guess that there are more unanimous opinions than 5-4 splits. In fact all 4 opinions yesterday were unanimous. Someone did some research on this late last year (the Times maybe?) and found that there was much more hegemony than believed, and that while the highest profile cases ofter had party line splits, most cases (on the order of 60% or more)were 9-0, 8-1 or 7-2.

“He [Supreme Court justice Antonin Scalia] talked about a couple of old cases where the Congress made mistakes, he felt, in its judgment,” Schakowsky added. “But they were not especially of a political nature…. This was pretty dry, actually.”